Worldview Commentary No. 289 on Chicago Public Radio, 91.5 FM WBEZ

Published: July 01, 2008

“Peru’s Former President Fujimori In the Dock”

A decade ago, as an advisor to the United States delegation to the annual meeting of the Organization of American States in Lima, Peru, I listened in amazement to a “welcoming” address by Peruvian President Alberto Fujimori. Haughty, arrogant and dismissive of international qualms about his human rights record, Fujimori lectured the visiting diplomats for failing to understand Peruvian reality.

Times change. Last week, as an international observer, I saw the same Alberto Fujimori seated alone at a table, both literally and symbolically below the high bench from which three Supreme Court justices now preside over his trial for human rights violations. He looked dejected. When asking questions about him, one justice referred to Fujimori not as President, or even ex-President, but simply as “the defendant.”

This is a hopeful turn of fortune in the struggle against impunity for gross violations of human rights, not only in Peru and Latin America, but in the world. Trials of national leaders for orchestrating atrocities are few and far between.

If not for his own folly, Fujimori might never have become an exception. Eight years ago Peru was scandalized by the television broadcast of videos showing his top aide – intelligence chief Vladimiro Montesinos — bribing members of Congress and Supreme Court justices. No one could suppose Fujimori innocent. He fled to Japan.

Having told Peru that he was born in Peru so that he could run for president, Fujimori now told Japan that he was born in Japan so that he could evade Peru’s request to extradite him. Japan is among many countries that do not extradite their own citizens.

But Fujimori chafed in exile. Hoping for a political comeback in Peru, he secretly flew to neighboring Chile, from which he apparently planned to organize a campaign. Chile thought otherwise. It arrested him. Last year Chile’s Supreme Court authorized his extradition to Peru.

Under international law, Fujimori can be tried in Peru only for the crimes for which he was extradited. These include the four human rights cases for which he is now on trial.

One involves the 1991 massacre of a group of residents of the Barrios Altos neighborhood in Lima, by a death squad of Peruvian intelligence agents known as the Colina Group, at a time when both Fujimori and Montesinos lived at the headquarters of the national intelligence service.

Another involves the kidnapping and killing of nine students and a professor from La Cantuta university in Lima in 1992. The other two cases involve kidnappings, one of a journalist, the other of a businessman.

The prosecutor does not claim that Fujimori specifically ordered the killings. Instead, he contends that Fujimori knew about the death squad and approved of it activities. Documents prove that Fujimori diverted secret national intelligence funds to Montesinos. They also show that even after public reports of the crimes by the Colina group, Fujimori issued official commendations to its members for their work in combating terrorism.

Members of the group have also testified that their leader told them that Fujimori gave the “green light” for their operations.

If the allegations are true, Fujimori is guilty under the international law theory of command responsibility: he knew of crimes being committed by men under his command and effective control, but did nothing to prevent the crimes or to punish the perpetrators. On the contrary, in 1995 he granted an amnesty to all his men for any crimes they might have committed in his “war against terrorism.”

But this international law theory has both legal and political disadvantages. Legally, the special chamber of the Supreme Court hearing the case is reluctant to rely on a command responsibility theory, because it is unprecedented in Peru. If Fujimori is convicted – as most observers predict – he will be able to appeal to a separate panel of five Supreme Court justices. Some of those justices are expected to be Fujimori sympathizers. The trial panel therefore needs to rely on legal theories solidly established in Peruvian law.

Politically, a command responsibility theory is disadvantageous because it can be portrayed as nothing more than a finding of negligence: Fujimori knew of the crimes but was negligent in not preventing or punishing them. If Fujimori is to pay a convincing political price for his alleged crimes, Peruvians want to hear about more than mere negligence.

The main theory of the prosecution case, if proved, would solve both the legal and political problems. The Peruvian criminal code holds perpetrators responsible for “indirect authorship” (“autoría mediata”). This essentially refers to one who plans crimes but uses others to commit them. In cases of criminal organizations, the leaders need not order specific crimes; it suffices that they know of the criminal purposes of a group which they control.

Legally, this theory has been used in Peru to convict both Shining Path guerrilla leaders and intelligence operatives involved in human rights violations. Politically and morally, it emphasizes Fujimori’s allegedly active role in promoting death squad activity.

The trial is expected to continue for months; a judgment may come late this year. Most Peruvian human rights lawyers expect a conviction. If they are right, and even if Fujimori later prevails on a partisan appeal or is pardoned, the man who was once untouchable will have been humbled. If Peruvians are to take seriously the possibility of the rule of law, they must see that in their country, at least, no one is above it.

Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.